On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6077-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges Lisa and Lihotz.
Plaintiff Nikki Elison appeals from a March 5, 2007 order for summary judgment, dismissing her personal injury complaint against defendant National Amusements, Inc. Other than her deposition testimony and certification, plaintiff presented no evidence of the alleged dangerous condition to show defendant's alleged breach of its duty of care. We agree with the motion judge that plaintiff's self-serving assertions do not create a question of material fact and are insufficient to defeat defendant's motion. We affirm.
The facts viewed in a light most favorable to plaintiff are as follows. On September 12, 2003, while attending a movie at defendant's theater complex, plaintiff states she "tripped and fell on a poorly maintained and hazardous set of steps, inside theatre #10" causing her to sustain a broken right ankle.
Plaintiff's expert, Richard A. Mehrman, a licensed professional engineer, inspected theater #10 prior to January 3, 2004, and concluded that plaintiff's injury was proximately caused by a defective plastic strip, which separated the carpeted stepped aisle from the tiled area in front of the seats. However, the incident report prepared by theater staff at the time of the accident stated plaintiff's accident took place in theater #8, not theater #10. The list of movie times further confirmed that plaintiff was in theater #8 when she fell. Defendant's expert, Bernard P. Lorenz, an engineering consultant, inspected theater #8 on August 10, 2006, and found no hazardous condition existed where plaintiff fell.
Defendant filed for summary judgment, arguing plaintiff failed to prove defendant breached a duty of care as no evidence showed a dangerous or defective condition in theater #8. Plaintiff responded. In her certification, she asserted her injury was caused by a broken piece of plastic molding in theater #8, which was similar to the broken plastic molding photographed by her expert in theater #10. She stated she recently visited theater #8 and noticed the defective condition was repaired and the carpet changed. Sean Ruddy, a theater manager for defendant replied, explaining that although the carpet had been changed, no plastic stripping had been altered, replaced, or otherwise modified.
In an oral decision, Judge Moses concluded:
The only evidence plaintiff has is her own testimony. And the [R]ule, and comment to Rule [4:46-2], establishes clearly that a plaintiff's self-serving assertion alone will not create a question of material fact sufficient to defeat summary judgment. . . .
A party is distinguishable from a witness. The fact that she goes back and says what she said is very self-serving. I think that the respondent has to show more than a mere scintilla of evidence, and, of course, anything concerning Theater 10 is out. We can't assume that because Theater 10 had bad molding, that Theater 8 had a bad molding.
So all there is, even upon plaintiff's later inspection of Theater 8 and the others, and she said it's been remediated, defendant has provided certifications under penalty . . . of law, . . . from the managing director that the plastic stripping had not been replaced in any of the theaters and, specifically mentioning Number 8. But that's neither here nor there, because subsequent remedial measures are not evidential in any event at trial.
On appeal, plaintiff asserts her deposition testimony and certification provide sufficient direct evidence of the condition that caused her fall, which should allow her to proceed to trial without an expert opinion.
A business owner owes a duty to a business invitee to "discover and eliminate dangerous conditions" existing on the business premises. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). That duty of care is breached when an invitee is injured as a result of the owner's failure to correct or warn of a dangerous condition, which could have been discovered ...